ANKIT ALIAS BABA vs STATE OF UTTARAKHAND

UKHC010029572014

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Judgment reserved on: 11.09.2026
Judgment delivered on: 04.11.2026


HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Appeal No.292 of 2014

Ankit Alias Baba --Appellant

Versus

State Of Uttarakhand --Respondent
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Presence:-
Mr. Ramji Shrivastava, Advocate with Mr. Gaurav Nagpal,
Advocate for the appellant.
Mr. B.N. Maulekhi, D.A.G. along with Mr. Sunil
Upadhyaya, Brief Holder for the State.
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Coram :Hon’ble Manoj Kumar Tiwari, A.C.J.
Hon’ble Pankaj Purohit, J.

Per: Hon’ble Pankaj Purohit, J.


The present appeal is preferred by the
appellant under Section 374 (2) of the Cr.P.C. against the
judgment and order dated 06.09.2014, passed by learned
IVth Additional Session Judge, Dehradun in Sessions
Trial No.115 of 2011, State vs. Vishal and another (FIR
No.498/2010 u/s 302/34, 307/34, 504/34 & 506/34
IPC, P.S. Kotwali-Dehradun), convicting the appellant
u/s 302/34 IPC and sentencing him with life
imprisonment along with a fine of Rs.10,000/- with
default stipulation of six months simple imprisonment;
further convicting u/s 307/34 IPC and sentencing him
with 10 years rigorous imprisonment along with a fine of
Rs.5,000/- with default stipulation of 3 months simple
imprisonment; and further convicting u/s 506/34 IPC
and sentencing with one year rigorous imprisonment and
u/s 504/34 IPC with six months.
2. In brief, the prosecution case is that an FIR
was lodged on 15.12.2010 at around 8:15 p.m. by Varun
Joshi against Ranjeet, Ankit @ Baba, Vishal, wherein it
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was alleged that around 5:30 p.m., the informant and his
brother Tarun were playing cricket in S.G.R.R. Ground
situated near Jhanda Pond. He alleged that Ranjeet,
Ankit @ Baba (appellant) and Vishal approached them
and asked them not to play cricket and on asking the
reason, they started assaulting them with bat and
stumps in which Tarun and the informant received
injuries and both of them were taken to the hospital.
Initially, the FIR was lodged under Section 325, 504 and
506 but Tarun died during the treatment and the
Investigating Officer filed a charge-sheet under Sections
302, 307, 325, 504, 506 of IPC read with 34 of IPC.
During investigation, the role of Channi @ Ankush also
emerged and he was also charge-sheeted under the
aforesaid sections.
3. Thereafter, learned Chief Judicial Magistrate
committed the case to Additional Session Court which
framed charges under Sections 302, 307, 504, 506 of IPC
read with 34 of IPC. The charges were read over and
explained to the accused, who pleaded not guilty and
claimed to be tried. Since accused Ranjeet and Channi@
Ankush were minor, their case was sent to Juvenile
Justice Board.
4. To prove its case, prosecution has examined
PW1 Varun Joshi (the informant), PW2 Shrey, PW3
Shivam, PW4 Dr. S.K. Jha, PW5 Dr. Harish Kohli, PW6
Ravi Sharma, PW7 Dr. G.S. Rawat, PW8 Dr. Pankaj
Arora, PW9 S.I. Dhirendra Pant, PW10 S.I. D.P.
Bahuguna, PW11 Constable Anil Kumar, PW12 S.I. Ram
Kumar Juyal.
5. After prosecution evidence, the statement of
appellant was recorded under Section 313 Cr.P.C., in
which, he denied the evidence of prosecution and stated
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that he has been falsely implicated.
6. After hearing the public prosecutor as well as
the appellant accused, the trial court found the charges
proved against the appellant beyond all reasonable
doubts and convicted and sentenced him, accordingly as
stated above.
7. During trial, PW1 reiterated the facts of
prosecution story and supported it. He on oath deposed
that the alleged incident was of 15.12.2020. On that day,
he along with his brother Tarun were playing Cricket on
SGRR, Talab Ground. Ankit, Ranjeet and Vishal
approached them and offered to play matches for prize
money of Rs.30/-. When they lost two matches instead of
giving Rs.60/- they started arguing with them and
assaulted them by saying that they dare not play cricket
over here. He further stated that Ankit and Ranjeet hit
him with a bat and Vishal hit him with a stump. He
further stated that when he tried to save himself from
blow of the bat, his elbow broke. When his brother Tarun
came to him to save him, Ranjeet attacked him with the
bat on his head. Because of this hit, Tarun got
unconscious and seeing this incident, their cousins
Shivam and Shrey came to save them. Thereafter, he
(PW1) and his brother Tarun were taken to the hospital.
Tarun died on 20.12.2010.
8. PW2 Shrey in his examination in chief deposed
that the alleged incident is of evening of 15.12.2010. He
reiterated the statement made by PW1 and stated that
Ankit and Ankush attacked Varun with bat and stump
and when Tarun came to save Varun, Ranjeet attacked
him with a bat. He further stated that after hitting his
brothers the accused persons ran towards the stairs and
left.
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9. PW3 Shivam, in his examination in chief
reiterated the prosecution story and on oath deposed that
when he reached Jhanda Talab at around 5:00 pm on the
alleged date of incident, he saw that Varun, Tarun and
Shrey were having altercation with Ranjeet, Ankush and
Ankit. He further stated that thereafter Ankush and
Ankit started beating Varun with bat and stump. He
stated that Ranjeet was carrying a bat and Ankush was
carrying a stump. He further deposed that when Ankit
tried to hit Varun on his head, he tried to save himself
and his hand got fractured. On seeing this, when Tarun
tried to save Varun, Ranjeet hit him with a bat on his
head. On his cross examination, he stated that he did not
see Vishal on the alleged place of incident.
10. PW4-Dr. S.K. Jha on his examination-in-chief
deposed that he conducted the medical examination of
Varun on 15.12.2010 and found bruises on his left elbow
which could have been caused by some blunt object. He
referred the injured Varun to orthopedic doctor and
advised him for X-ray. He proved medical injury report as
Ex.Ka-2. On the same, he examined Tarun (injured who
later on died of the injuries sustained by him). He also
found injury marks contusion 3X2 cm on his head,
which also could have been caused by some blunt object.
He advised him for X-ray and CT-Scan & referred him to
Neurosurgeon. He proved his medical report as Ex.Ka-3.
11. PW5-Dr. Harish Kohli conducted medical
examination of Varun and conducted his X-ray, by which
it was found that his left elbow had broken. He proved
Ex. Ka-4 and Ex.KA-5.
12. PW6- Ravi Sharma, in his Examination-in-
Chief deposed that on the alleged date of fateful incident,
he was at his home. He was informed by phone around
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5:30 pm that Tarun and Varun have suffered some
injuries. He further deposed that when he reached
Jhanda Talab, crowd had gathered over there. He saw
that Varun along with few people was taking Tarun to the
hospital. He further deposed that on 20.12.2010, Tarun
died in Mahant Indresh Hospital, Dehradun. He proved
his signature on the inquest report Ex.Ka-6.
13. PW7 Dr. G.S. Rawat, in his examination-in-
chief stated that on 20.12.2010, he conducted the post
mortem of Tarun Joshi, who was aged around 27 years.
On his examination, he found 55 stitches on his head
and also found bruises on his stomach, He opined that
the death might have been caused due to coma induced
because of a head injury. He proved post mortem report
Ex.KA-7.
14. PW8 Dr. Pankaj Arora, in his examination-in-
chief deposed that he conducted treatment and operation
of Tarun Joshi, but he could not be saved.
15. PW9 Dhirendra Kumar Pant stated that he did
the primary investigation of the incident and he also
prepared the site map. Thereafter, the investigation was
transferred from him.
16. PW10 S.I. D.P. Bahuguna, in his examination-
in-chief deposed that he conducted the investigation of
the alleged incident and after the death of Tarun,
increased the charges of 307 and 302 IPC. He further
deposed that on his investigation, it was found that
Ankush alias Chunni was also involved in the alleged
incident. He further deposed that he arrested Vishal and
Ranjeet near Railway Station on 23.12.2010.
17. PW11 Constable Anil Kumar is a formal
witness. He proved police papers Ex.Ka-16, Ex.Ka-17,
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Ex.Ka-18, Ex.Ka-19 & Ex.Ka-20.
18. PW12 S.I. Rajkumar Juyal in his examination-
in-chief deposed that he arrested accused Vishal and
Ranjeet near Railway Station and the accused Ankit from
S.G.R.R. School, Khurbura, and thereafter, after
completion of the investigation submitted charge-sheet.
19. It is vehemently argued by learned counsel for
appellant that learned court below committed grave
irregularity by convicting the appellant as the
prosecution failed to prove its case beyond all reasonable
doubts. He further stated that the prosecution story is
highly improbable and unbelievable as the prosecution
failed to prove any motive against the accused appellant.
He further stated that no recovery of weapon of assault
either from the possession of the appellant or on the
pointing of the appellant was recovered. He further
submitted that it is apparent from the evidences of PW-1,
PW-2 and PW-3 that the appellant did not assault the
deceased. He further argues that as the other accused
Vishal has been acquitted by the learned trial Court, the
conviction under Section 34 could not sustain. He also
placed reliance on the judgment of Juvenile Justice
Board dated 21.12.2016 wherein the other juvenile
accused were convicted under section 304 part II of
IPC,1860. He further stated that common intention
hasn’t been sufficiently proved by the prosecution and
also submitted that prosecution has failed to prove guilt
the of the accused- appeallant beyond reasonable doubts.
He relied upon the following judgments of Hon’ble Apex
Court in the case of Shanker vs. State of Madhya
Pradesh (2018) 15 SCC 725 and Badruddin vs. State
.
of U.P. (1998) 7 SCC 300
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20. Per contra, learned State Counsel supported
the case of prosecution and the impugned judgment
contending that the eye witness account of injured PW1
injured witness Varun, PW2 and PW3 remained
consistent and unshaken throughout the trial and no
material contradiction could be elicited even on lengthy
cross examination of the injured witness as well as other
prosecution witnesses.
21. Having heard the learned counsel for the
parties and on perusal of the record, this Court is of the
considered opinion that the conviction of the appellant is
based upon direct evidence and the conviction is based
upon the testimony of the star witness PW-1, who was
himself injured during the alleged incident. It is a settled
principle of law that great credence is given to the
testimony of injured witness as it is more probable that
he will not lie and will want that the actual accused
persons get punished. Moreover, in this case as he has
lost his real brother. It is all the more certain that he will
depose to ensure that the actual culprits get punished
and it will be highly unlikely that he will try to frame
innocent persons. The evidentiary value of injured eye-
witnesses were appreciated by Hon’ble Apex Court in the
judgment of ,
Tahsildar Singh versus State of U.P. AIR
1959 SC 1012 , wherein following guidelines were
enunciated:-
“When the evidence of an injured eye-witness is to be appreciated,
the undernoted legal principles enunciated by the Courts are
required to be kept in mind:
(a) The presence of an injured eye-witness at the time and
place of the occurrence cannot be doubted unless there are
material contradictions in his deposition.
(b) Unless, it is otherwise established by the evidence, it must
be believed that an injured witness would not allow the real
culprits to escape and falsely implicate the accused.
(c) The evidence of injured witness has greater evidentiary
value and unless compelling reasons exist, their statements
are not to be discarded lightly.
(d) The evidence of injured witness cannot be doubted on
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account of some embellishment in natural conduct or minor
contradictions.
(e) If there be any exaggeration or immaterial embellishments
in the evidence of an injured witness, then such contradiction,
exaggeration or embellishment should be discarded from the
evidence of injured, but not the whole evidence.
(f) The broad substratum of the prosecution version must be
taken into consideration and discrepancies which normally
creep due to loss of memory with passage of time should be
discarded”.

22. The argument of the learned counsel for the
appellant regarding the fact that PW-2 and PW-3 turned
hostile also does not hold any water as the law has been
settled by Hon’ble Apex Court that there is no legal bar
to base a conviction upon a hostile witness testimony, if
it is corroborated by other reliable evidence, it has been
held that the fact that a witness has been declared
hostile does not result in an automatic rejection of his
evidence. My above view is based upon the judgment in
Sat Pal versus Delhi Administration (1976) 1 SCC
, wherein, the Hon’ble Apex Court stated “This Court
727
cautioned that even if a witness is treated as ‘hostile’ and
is cross-examined, his evidence cannot be written off
altogether but must be considered with due care and
circumspection and that part of the testimony which is
creditworthy must be considered and acted upon. It is for
the judge as a matter of prudence to consider the extent of
evidence which is creditworthy for the purpose of proof of
the case. In other words, the fact that a witness has been
declared ‘hostile’ does not result in an automatic rejection
of his evidence. Even, the evidence of a ‘hostile witness’ if
it finds corroboration from the facts of the case may be
taken into account while judging the guilt of the accused.
Thus, there is no legal bar to raise a conviction upon a
‘hostile witness’ testimony if corroborated by other
reliable evidence. ”
23. Appellant’s counsel also relies upon some
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contradiction between the statements of PW1, PW2 and
PW3, but these contradictions are not of a grave nature.
It cannot be expected by the witnesses that they
remember the exact weapon and exact part of the body,
where the deceased person and the injured person were
hit. This Court is of the firm view that the prosecution
witnesses have supported the prosecution story and
these minor contradictions can be ignored.
24. The contention of the learned counsel for the
appellant that he should be convicted under Section 304
Part-II of IPC, 1860 as the other co-accused juveniles
were convicted under the said section also does not hold
any water, as the learned Juvenile Justice Board
convicted the accused juveniles under Section 304 Part-
II after taking into account exception 4 to Section 300
IPC. This Court does not find the reasoning appropriate,
as the bare perusal of Section 300 IPC, it makes amply
clear that any of the exceptions will only come into play
if the prosecution is able to prove that there is a causal
connection of the act of accused persons with any of the
of the essentials of Section 300 IPC, which is quoted
hereinbelow:-
“ 300.Murder- Except in the cases hereinafter excepted,
culpable homicide is murder, if the act by which the death
is caused is done with the intention of causing death, or—
(Secondly) — If it is done with the intention of causing such
bodily injury as the offender knows to be likely to cause the
death of the person to whom the harm is caused, or—
(Thirdly) — If it is done with the intention of causing bodily
injury to any person and the bodily injury intended to be
inflicted is sufficient in the ordinary course of nature to
cause death, or—
(Fourthly) — If the person committing the act knows that it
is so imminently dangerous that it must, in all probability,
cause death or such bodily injury as is likely to cause
death, and commits such act without any excuse for
incurring the risk of causing death or such injury as
aforesaid.”
25. This Court is of the considered view that the
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conduct of appellant shows that he did not intend to
cause death of the deceased or he also did not intend to
cause such bodily injury which may result into death.
His conduct at the most shows that he had the
knowledge that he is likely, by his act, to cause death.
Therefore, his conduct will fall under Section 299 IPC
and would not attract the provisions of Section 300IPC.
Thus, this Court is of the considered opinion that the
appellant’s conviction be modified to such extent. This
Court deems it fit to convict the appellant under Section
304 Part-II/34, 308/34, 504/34 and 506/34 of IPC.
26. As far as the argument of learned counsel for
the appellant that appellant cannot be convicted for the
offence with the help of Section 34 of Indian Penal Code,
1872 is concerned, we are of the view that as the other
two accused persons namely Ankush and Ranjeet were
eventually held guilty and were convicted by the Juvenile
Justice Board, it can be safely assumed that the
appellant had developed the common intention to cause
such bodily injuries, which in the knowledge of appellant
would cause death of the deceased at the spot which is
very clear from the conduct of the accused persons,
therefore the learned trial Court committed no
irregularity in convicting the accused appellant with the
help of common intention enshrined under Section 34
IPC.
27. We have also gone through the judgments
relied upon by appellant. They are of no use to appellant
in factual background of this case.
28. The upshot of the aforesaid discussions is that
the appeal deserves to be partly allowed. The conviction
and sentence is modified to the extent that appellant is
now convicted under Section 304(II)/34 IPC instead of
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Section 302/34 IPC and under Section 308/34 IPC
instead of Section 307/34 IPC. The conviction and
sentence under Section 506/34 and 504/34 are not
disturbed. The impugned judgment and order dated
06.09.2014 passed by the learned Additional Sessions
Judge, Dehradun, is accordingly modified. Appellant is
sentenced under Section 304-II/34 IPC with 10 years
rigorous imprisonment and a fine of Rs. 5,000/- with
default stipulation of 6 months additional simple
imprisonment and is convicted under Section 308/34
IPC and sentenced with seven years’ rigorous
imprisonment and a fine of Rs.2000/- with default
stipulation of three months additional simple
imprisonment. The sentence awarded shall run
concurrently. As the accused appellant is on bail he
shall surrender before the learned trial court. His bail-
bonds are cancelled and sureties are discharged.
29. Let Trial Court Record be immediately sent
back to the trial court for necessary action.


(Pankaj Purohit, J.) (Manoj Kumar Tiwari, A.C. J.)
04.11.2026

PN




PREETI
NEGI
Digitally signed by PREETI NEGI
DN: c=IN, o=HIGH COURT OF UTTARAKHAND,
ou=HIGH COURT OF UTTARAKHAND,
2.5.4.20=63c75a8c4765581180a58d7478fadbe38
331bac55c78b5f9f0276c16432f6aab,
postalCode=263001, st=UTTARAKHAND,
serialNumber=2BA53171893B3C3CB3CCCAE81F
AE064498483A83D84BDB0F9229D5BF08D959AC , cn=PREETI NEGI
Date: 2026.11.05 11:00:43 +05'30'
11